Op-Ed: Deport, not court? The U.S. is already doing that

Many Americans were outraged by President Trump’s recent tweet saying that people seeking to enter the United States should be deported “with no Judges or Court Cases.”

But the practice of deporting immigrants without seeing a courtroom is already the rule, not an exception. In the last eight years, more than half of people removed from the United States had no day in court; in 2015 and 2016, that number reached 85% of all removals.

Three speed deportations programs exist under various provisions and names — and their use has been growing for years. Expedited removal allows the government to quickly deport tens of thousands of people who lack proper entry documents at the border. Reinstatement applies to persons who return to the U.S. after been previously deported, no matter how old the prior removal was. Finally, under a mechanism called administrative removal, noncitizens who are not lawful permanent residents — including valid visa holders, those with temporary protected status, or those enrolled in DACA — can be summarily deported if a Homeland Security official believes the immigrant has previously been convicted of an “aggravated felony.” (What qualifies as an aggravated felony is an intensely complex legal question, and the federal courts have often had to correct the immigration authorities.)

Immigrants in these circumstances are not allowed to use certain defenses ordinarily available in immigration court, such as claims that recognize family ties or length of residence. Instead, they enter a lawless zone in which the process moves quickly; sometimes it’s over in a matter of minutes. In the case of expedited removal at the border, noncitizens are almost entirely barred from seeking federal court review — even if immigration agents fail to meet legal standards for assessing whether the person is eligible for asylum.

While each speed deportation program operates differently, their outcomes carry all of the legal sanctions associated with a fully litigated removal order. Yet it is front-line immigration agents — who are not lawyers and typically lack extensive legal training — who act as judge, jury and bailiff.

This is not to say that those who get court hearings before immigration judges experience fairness. On the contrary, immigration courts are, as one judge put it, a place where cases with death penalty-like consequences are adjudicated with the resources of traffic court. A decade ago, a trio of scholars called immigration court “refugee roulette” to underscore the random outcomes of asylum claims depending solely on which judge got the case. The lack of access to counsel, especially in immigration detention prisons, often leads immigrants with viable cases to give up.

What few protections exist in immigration court are, of course, being dismantled by the Trump administration. For instance, the Justice Department is demanding that immigration judges meet unrealistic case completion quotas of at least 700 cases a year, and at the same times is restricting judges’ ability to manage their dockets by administratively closing cases where appropriate.

Those threatened by speed deportation have one safety net: admission to the U.S. when they face persecution or torture in their home countries. These protections emanate from international law and are reflected in U.S. law. That is how some asylum seekers are able to get to immigration court. By suggesting that every single person arriving at the border be removed, Trump not only embraces the cruelest path available, he violates a fundamental commitment to law and justice.

If there is a silver lining to be found in the torment we’ve seen at the border in recent weeks, it is that more Americans are learning about the Kafkaesque situations confronting immigrants. We hope the rest of the country can see that the right path forward is greater due process, not less.

Jennifer Lee Koh is a law professor and director of the Immigration Clinic at Western State College of Law. Shoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar and Clinical Professor of Law at Penn State Law School, where she directs the Center for Immigrants’ Rights Clinic.

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